FCC rules with heavy hand and big stick

by Amy Kingsley

I hope Howard Stern’s bosses over at Sirius Satellite Radio were wise enough to furnish the shock jock with a comfortable office. Thanks to the president, Congress and the FCC, the chances of the infamous radio personality returning to broadcast radio have been virtually eliminated.

That’s because in June, President Bush signed a bill proposed by the Federal Communications Commission that increases the maximum fine for broadcasting indecent, profane and obscene material tenfold from $32,500 to $325,000. Chairman Kevin Martin and Commissioner Michael Copps, two of the five members of the board that helped make this happen, have ties to the Old North State.

I met Martin once, less than a month after President Bush appointed him to succeed Michael Powell as chairman of the FCC. I contacted him and Copps when I was researching my master’s thesis on this very subject. Martin responded to my email and we arranged a meeting.

Martin has the youthful visage and upright manner of an overgrown Boy Scout, and he cancelled the meeting promptly upon learning that I was a journalism student, but not before I had traveled all the way to Washington, DC. I spent the rest of the day poring through the files of community radio stations, some of which were stuffed full of letters from angry and loyal listeners.

Before I read the letters, I had a notion that consensus in matters of decency would be hard to come by. This was 2005, about a year after the Janet Jackson Super Bowl flap caused millions to erupt into paroxysms of righteous indignation and others to giggle at the sight of so much political posturing.

I’m disappointed that the fine increase has not been met with a massive groundswell of public opposition. But from the start, the dizzying issue of broadcast speech regulation has been couched as an effort to shield children from inappropriate material, which is a difficult position to oppose.

Thanks to Hollywood, most Americans are aware of the legal confusion surrounding obscenity, a class of speech that is illegal in any format: print, broadcast, film or otherwise. To limit conflict with the First Amendment, material is judged obscene with a three-prong legal test involving prurience and community standards. The key prong is the last one: The material, taken as a whole, must lack serious literary, artistic, political or scientific value.

Or, as Justice Potter Stewart put it in 1964, ‘“I know it when I see it.’”

At least with obscenity, judges have labored to find a bright line, although it has proved as shifty as a sidewinder. Indecency and profanity are altogether more confusing.

To start with, those two types of speech are only restricted in broadcast radio and television ‘– not cable or satellite services. And it is legal to broadcast indecent material between the hours of 10 p.m. and 6 a.m., hours burned into my memory by three years of late-night college radio service.

But what is indecent? It is material that describes sexual or excretory acts or organs in a manner that is patently offensive but doesn’t rise to the level of obscenity. In other words, it’s the giant gray area between completely acceptable and unconscionably vile.

Indecency fines have been slapped on stations as diverse as CBS (for that nanosecond clip of Janet Jackson’s breast) and Portland, Ore. community station KBOO-FM. The community station ‘– run on donations and volunteer labor ‘– earned a $7,000 fine for broadcasting ‘“Your Revolution,’” a song by performance artist Sarah Jones.

It’s that case, among several others, that causes me to worry about the affect of ratcheting up indecency enforcement so drastically. Jones’ song was an indictment of popular rap songs she found degrading to women. ‘“Your Revolution’” commented on the sexism rampant in popular rap music by using the actual lyrics of hit songs.

The FCC eventually relented on its decision, some three years after issuing the fine and several court battles later. But it wasn’t the first time the agency has erred on the side of inhibiting free expression. And it probably won’t be the last.

When I was researching my thesis, I discovered that most college and community stations already censor themselves enough to stay on the FCC’s good side when it comes to indecent material. I discovered only two, my alma mater KVRX-FM at the University of Texas and WXDU-FM at Duke University that allowed deejays to play indecent material during the legal ‘“safe harbor’” hours.

I think that it is unfortunate that so many nonprofit radio stations have to muzzle themselves out of fear of crippling FCC fines. The frequencies left of the dial have traditionally been the last bastion of free speech and edgy music in a radio landscape dulled by the corporate domination.

The Pacifica Radio network has never shied away from this fight. Their appeal of an FCC fine for broadcasting the George Carlin ‘“Seven Words’” routine is what brought indecency to the consciousness of the Supreme Court in 1978.

Their affirmation of the FCC by a 5-4 vote in that case did not come without some serious concerns about conflicts with the First Amendment. Those issues are still there, and with the fine increase, inhibitions on free speech are only going to get worse. Pacifica V. FCC is a case that deserves a revisit, which will only happen if a radio or television station stands up the agency.

Unfortunately, I don’t know any stations that can afford to lose.

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